FBI Director James Comey faced stiff resistance on Capitol HIll from lawmakers Tuesday, including from Rep. John Conyers, D-Michigan, who said he would be "deeply disappointed if it turns out that the government is found to be exploiting a national tragedy to pursue a change in the law." | John Shinkle/POLITICO

FBI’s iPhone fight hits static on the Hill

The U.S. government’s attempts to compel Apple to unlock iPhones tied to key federal investigations failed to win much support Tuesday from Capitol Hill, where many lawmakers — and the tech giant itself — blasted FBI Director James Comey for circumventing Congress and jeopardizing Americans’ privacy.

Comey arrived at a closely watched House Judiciary Committee hearing with a plea: He told panel members that the agency needs greater access to digital communications in order to investigate sexual predators, child abductors and terrorist groups like the Islamic State. And he said it was critical in the aftermath of the deadly shooting last year in San Bernardino, Calif., where the FBI last month obtained a judge's order to force Apple to help crack a password-protected iPhone found near the attack site.

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"A confident investigator would try to use all lawful tools to gain access to that device, and that’s what’s happening in San Bernardino," Comey said. "Of course it will be looked on by other judges and other litigants, but it is about the case."

But Comey — who delivered his three-hour defense alone, without notes, before the panel — drew a sharp rebuke from Apple, which is contesting the Justice Department’s demands in two federal courts.

"If what happens here is Apple is forced to write a new operating system ... it will weaken our safety and security, but it will not affect the terrorists in the least," stressed Bruce Sewell, Apple's general counsel, in testimony delivered later in the day.

The committee’s Democrats and Republicans alike seemed deeply skeptical about the FBI's tactics — and sympathetic to Apple’s complaints.

Michigan Rep. John Conyers, the top Democrat on the panel, slammed the FBI for asking "a federal magistrate to give them the special access to secure products that this Committee, this Congress, and the Administration have so far refused to provide." Conyers added that he would be "deeply disappointed if it turns out that the government is found to be exploiting a national tragedy to pursue a change in the law."

The committee's chairman, Rep. Bob Goodlatte, did not take a position on the merits of the case — but the Virginia Republican emphasized that the government's fight against Apple in California may not be "ideal" to set a legal precedent. And he pressed Comey on the fact that the decision in the San Bernardino case would indeed create a standard that would shape other cases related to smartphones.

"It is clear these cases illustrate the competing interests at play in this dynamic policy question — a question that is too complex to be left to the courts and must be answered by Congress," Goodlatte continued.

The tense, often technical hearing on Tuesday marks Washington's first foray into the encryption debate after a federal magistrate in California last month ordered Apple to write and install special software on an iPhone found near the shooting site in San Bernardino. The software would allow the government to try an unlimited number of passwords without triggering a feature on the device that automatically deletes its contents after too many failed attempts. A court hearing in the case is slated for the end of March.

It’s just one of two pivotal cases involving Apple: The Justice Department is seeking similar capabilities as part of a drug investigation in New York, though a judge there on Monday ruled in the company's favor, arguing the DOJ had no authority under a centuries-old law, known as the All Writs Act, to force the company to crack the device.

Comey on Tuesday found strong support from Manhattan District Attorney Cyrus Vance Jr., who testified that his office has been unable to crack 175 iPhones that are critical to ongoing investigations. Apple's approach to security, he said, "provides [criminals] with the cloak of secrecy, and they are, ladies and gentleman, quite literally laughing at us."

But Apple, which has fought vigorously against what it describes as a "backdoor," said the FBI's case would harm all smartphone users by setting a dangerous precedent. And Sewell blasted the federal government for labeling the company's opposition a marketing ploy.

"To say that it's a marketing ploy or it's somehow about PR really, really diminishes what should be a really serious conversation involving this Congress, stakeholders and the American people," he told lawmakers.

Rep. Zoe Lofgren (D-Calif.) expressed fears that the FBI, seeking “holes in encryption,” would open the door for hackers and spies to compromise Americans’ devices. Rep. Darrell Issa (R-Calif.), who with Lofgren has criticized the Justice Department’s handling of the San Bernardino case, expressed deep unease that the FBI didn’t try what he described as all the available technical options to crack the device.

Comey also fielded repeated questions about the FBI’s conduct in the hours after it obtained the suspect’s iPhone in San Bernardino. Apple has argued that authorities changed another password on the device, tied to its Apple ID, at the direction of the FBI. If that change had not occurred, the FBI could have backed up the iPhone’s contents to the cloud and avoided the need to crack the phone in the first place.

Rep. Jerrold Nadler (D-N.Y.) raised the possibility that “all of this would have been unnecessary” without the mishap. Comey himself acknowledged the “mistake,” but argued the FBI would have found itself in court anyway because a backup wouldn't have included all the data it sought.

But Apple at times found itself on the defensive as well. The company has said for weeks that Congress, not the courts, should settle the issues at stake in the legal cases. Yet Sewell, pressed by Rep. Jim Sensenbrenner (R-Wis.) to offer a specific legislative proposal, only pointed to Apple's previous statements.

“You told us what you don’t like, you said Congress ought to debate and pass legislation, but you haven’t told us about one thing you do like,” charged Sensenbrenner, who said Apple has only been “saying no, no, no, no.”

The congressman added that if Apple leaves it entirely to the Hill, it’s “guaranteed you aren’t going to like the result.”